Stigma

1. Stigma Carry over from last readings

2. Paul v. Davis • Paul v. Davis let the sheriff give out a list of "active shoplifters" even if defendant had not been convicted yet. • The court distinguished Constantineau: • Said that there was a stigma because drunks could not buy alcohol. • What did Justice Brennan say this would allow the states to do? • Have commissions do ex parte trials as long as all they did was public condemnation, such as calling the person a Communist or a traitor.

3. Public Child Abuse Registries • Valmonte v. Bane, 18 F.3d 992 (2nd Cir.(N.Y.) 1994) • Plaintiff was put on the child abuse register because of a complaint • Employers were required to check this list • Court found that this deserved a hearing • Siegert v. Gilley, 500 U.S. 226 (1991) • Defamatory job recommendations from Government employer • Not a constitutional violation

4. Perverts R/US WWW Sites • Privacy loses to security • United States Supreme Court recently ruled that persons convicted of even minor sex related crimes, such as public indecency as teenagers, could be put on a state WWW site without a hearing. • Connecticut Dept. of Public Safety v. Doe, 123 S.Ct. 1160, 71 USLW 4125, 71 USLW 4158 (2003) • Smith v. Doe, 123 S.Ct. 1140, 71 USLW 4182 (2003) • Claimed this was police power prevention, not punishment

5. What is the Role of Hearings? How do we balance agency costs and efficiency against individual rights and community perception of fairness?

6. Social Security DisabilityBasic Procedure drill - I • Get a form the office • What is the illness, the work history, the doc? • SSI orders records • A doc at SSI at Disability Determination Service - run by state as contractor - makes a determination • Sends to regional office • Regional office pays, QA, or denies • Ask for reconsideration • This is all done with records

7. Social Security DisabilityBasic Procedure drill - II • At the state level, the examiner can call the patient's doc • At the fed level, the expert is bound by the patient's doc • Most problems arise because of poor documentation • Applicants can submit new info and get a new evaluation • After denial, you can ask for a hearing before ALJ • At the hearing stage, you ask for an expedited review if the case is clear • ALJ's decision is final

8. Volume of Claims • How many claims does SSA decide every year? • How big is the disability system (SSD)? • Why is this important background for Matthews v. Eldridge

9. Matthews v. Eldridge (1976) • Why does SSD require periodic review of benefits? • When does SSD provide a hearing? • What if the claimant is successful at the hearing? • How long can this take? • Why does the Court find this is less critical than in Goldberg?

10. What does plaintiff want? • What data is used for making disability determinations? • Who would be the witnesses and how is their information collected? • Does the claimant's testimony matter? • How does this change the equities of Goldberg? • Why is the administrative decisionmaker less prone to make errors in this case than in Goldberg?

11. Cost Benefit Analysis • What are the Mathews factors? • C = P x V • Cost = Probability of increased accuracy versus Value of the benefit • How would you apply these factors to Matthews? • Does plaintiff get his pre-termination hearing?

12. What Other Issues are at Stake? • Is it possible to really assign numeric values to these parameters and do a rigorous comparison? • Is accuracy the only criteria? • Are jury trials accurate in this sense? • Why do we have them? • Why does it matter what the public thinks of the process?

13. Right to Counsel in Administrative Hearings • Was there a right to appointed counsel in Goldberg? • Where there any limitations on her hiring a lawyer? • Why was that unrealistic for her? • Can the government limit your ability to privately retain counsel?

14. Walters v. National Ass'n of Radiation Survivors • Upholds $10 limit on attorney's fees in VA proceedings • When was this passed? • What was the intent at the time? • What is the effect in 1985? • No attorney representation

15. Why does the VA not like Attorneys? • Just gum up the machine • Do not increase accuracy • Who does represent veterans? • Lay persons from support organizations • Any evidence attorneys would do better?

16. Representing Veterans before the VA • This case is still good law, making it very difficult for veterans to fight claims denials. • You can get fees when you file in Ct Ap Vet Claims • Limit of 20% in the regulations • Review of fee agreements by the court of vet apps • Fees available if position of DVA was not justified - hard to prove • See: http://www.vetadvocates.com/ if you are interested in representing veterans before the VA.

17. Ingraham v. Wright • Paddling school kids • What is the alleged harm? • What are the alleged constitutional law violations? • Why isn't paddling cruel and unusual?

18. Administrative Costs • What do the plaintiffs really want? • How will requiring a hearing before paddling advance their ultimate goal?

19. Goss Style Give and Take • Goss was the suspension case • Got informal give and take before suspension • No confronting witnesses • No counsel • How is Goss distinguishable from Ingram?

20. How is the Mathews analysis used in Ingraham? • What is the cost of a hearing? • What is the potential benefit? • Was there evidence of widespread problems? • Why did the court talk about the open nature of schools? • Would paddling in prison be different? • Why is there little chance for error? • Why not even a Goss hearing in Ingram?

21. What are Alternative Remedies? • Tort claims under state law • Negligence • Intentional torts • May be immune • 42 USC 1983 claims • What would you need to show to make an alternative claim?

22. Tort Remedies as Due Process • What are the limitations on a tort remedy as a substitute for due process? • How do you pay for tort law? • What are the potential recoveries? • What is the timeframe? • What about governmental immunity? • How would tort law work in these cases?

23. Contract Remedies - Lujan v. G & G, 121 S.Ct. 1446 (2001) • State contract terms required contractors to pay prevailing wage rates • If there was a dispute, the state would withhold the payments until the dispute was settled • Plaintiff claimed this was deprivation of property without a hearing • Do they get a hearing? • If not, what is the remedy?

24. Academic decisionmaking • Why is there a greater due process right for non-academic discipline than for academic failure? • What does the Board of Curators of the U. of Mo. V. Horowitz (Horowitz case) tell us about due process rights for students who are flunked out and why? • What should you do if you are representing such a student?

25. Club Misty v. Lanski, 208 F2d 615 (7th Cir 2000) • Why are there special considerations in analyzing liquor sales under the constitution? • What is local option on liquor sales? • Why was allowing local voters to cancel a specific liquor license problematic? • What process would be necessary if the voters elected a politician who ran on a platform of closing the same joint?

26. When is a Hearing Right Meaningless?

27. Parratt v. Taylor • Prison negligently lost plaintiff's hobby kit • Why was a hearing meaningless in this case? • Is a state tort claim a meaningful remedy? • What remedy would you set up?

28. Hudson v. Palmer • Guard intentionally destroyed prisoner's stuff • Why was a hearing meaningless in this case? • How can due process be satisfied? • What are the appropriate remedies? • Should the prison pay for the inmate's stuff?

29. Daniels v. Williams • Jail prisoner slips on pillow on stairs • Sues for 1983 due process deprivation for injury • What does the court say satisfies the due process requirement? • NB - Things like negligent prison health care are actionable as cruel and unusual punishment, not due process violations

30. Zinermon v. Burch • Negligence as sham to avoid due process • State fails to give mental patient statutory due process before locking him up • Defendant hospital claimed this was negligent and thus the only remedy was state tort law • Was he locked up for a long time? • How does this affect the defense? • What did the court say about the "I forgot to get him a hearing defense?"

31. Problems - 699 • Review and be prepared to discuss • Towing Dr. Smith's car • The White House Press Pass • The Suspension Hearing

32. Hearings and Accuracy of Agency Proceedings • Assume that 60% of contested proceedings that are appealed to an ALJ are found in the claimants' favor • Does this show that the decisionmaking is wrong more often than it is right? • What other information do you need? • Why might judges have a different review standard than the case worker?

33. Alternatives to Hearings • How are regulations an alternative to hearings? • Why are they more rigid? • In what sense are they fairer? • What about ombudsmen? • Why do congresspersons like for agencies to make mistakes? • What is the separation of powers issue?